Opinion
No. COA14–548.
02-17-2015
Jay Allen BENNETT, Plaintiff–Appellee, v. Heather Kathleen BENNETT, Defendant–Appellant.
W. Andrew Jennings for Plaintiff–Appellee. Crowe & Davis, P.A., by H. Kent Crowe, for Defendant–Appellant.
W. Andrew Jennings for Plaintiff–Appellee.
Crowe & Davis, P.A., by H. Kent Crowe, for Defendant–Appellant.
McGEE, Chief Judge.
Jay Allen Bennett (“Plaintiff”) and Heather Kathleen Bennett (“Defendant”) were married on 19 November 2000. They had one child (“the child”), born 29 September 2001. Plaintiff and Defendant separated on 20 June 2008. Apparently, Defendant obtained a domestic violence protective order against Plaintiff on 8 July 2008. Defendant alleges that “[a]s a result of the domestic violence perpetrated against me by [Plaintiff] I sought and received protection and assistance from the Federal Bureau of Investigation Domestic Violence Victim Advocate.” Defendant contends that she has “been granted an anonymous identity.” Defendant has maintained physical custody of the child since July of 2008, and Plaintiff has been unable to locate either Defendant or the child since that time.
Plaintiff filed the complaint in this matter on 12 June 2013, seeking “both temporary and permanent custody of the minor child” and requesting visitation. A summons was issued on 12 June 2013, but was returned unserved because Defendant could not be located by the Sheriff's Office. The Catawba County Department of Social Services (“DSS”) was apparently served with a subpoena to produce Defendant's contact information in order that Plaintiff could serve Defendant with the summons and complaint in this case. DSS filed a third-party motion to quash the subpoena on 20 June 2013, arguing that it had a responsibility to keep Defendant's information confidential. It is unclear from the record if that motion was ever heard by the trial court. Defendant was informed about the filed complaint and the subpoena directing DSS to provide her contact information so that service could be effected. Defendant responded in the following manner:
Rather than have [DSS] reveal my identity and my address ... I retained J. Steven Brackett [ (“Brackett”) ] as my attorney and authorized him to accept service of the Summons and Complaint in this case under an anonymous identity so that I could challenge [ ] the [trial court's] personal jurisdiction over me.
Defendant executed a document entitled “Acceptance of Service” on 20 September 2013. In the acceptance of service, Defendant, using the name “Jane Doe,” swore that she was the defendant named in the summons, that she was “Defendant, the party to be served in the within Summons[,]” and that “[b]y the execution hereof, she hereby accepts service of said Summons and acknowledges the receipt of the original Summons and a copy of the Complaint filed in said action [.]” Defendant's acceptance of service was notarized in Burke County on 20 September 2013. Defendant filed the acceptance of service, along with a motion to dismiss, on 2 October 2013.
Defendant moved the trial court to dismiss Plaintiff's complaint pursuant to N.C. Gen.Stat. § 1–1A, Rule 12(b)(2) and Rule 12(b)(1) “for the reason that the Court lacks personal and subject matter jurisdiction.” Defendant did not identify in her motion the bases upon which she claimed a lack of jurisdiction over her person or the subject matter of Plaintiff's complaint. Defendant did contend in her motion to dismiss that she “believe[ed] that the Court lack[ed] subject matter jurisdiction to enter an order compelling [DSS] to reveal [her] identity including [her] address.”
Defendant's motion to dismiss was heard on 28 October 2013. Plaintiff was present with his counsel, and Defendant was represented by Brackett. Defendant does not include a transcript of this hearing; thus, we have no indication of what arguments Defendant made to the trial court. The trial court entered its order in the matter on 19 December 2013, finding that “Defendant, acting as ‘Jane Doe’ accepted service of the previously returned summons and acknowledged receipt of that same summons and a copy of the Complaint[.]” The trial court denied Defendant's motion to dismiss. Defendant appeals.
In Defendant's sole argument on appeal, she contends that the trial court erred in denying her motion to dismiss. However, the dispositive issue, which we address ex mero motu,is the interlocutory nature of this appeal. We hold that Defendant's argument is not properly before us, and we must therefore dismiss it.
Defendant moved to dismiss pursuant to Rule 12(b)(1), lack of subject matter jurisdiction, and Rule 12(b)(2), lack of personal jurisdiction. The 19 December 2013 order was clearly interlocutory. Therefore, Defendant must demonstrate that her attempted appeal is properly before us. Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338 (2005) (“It is well established that the appellant bears the burden of showing to this Court that the appeal is proper.”).
Initially, denial of a motion to dismiss pursuant to Rule 12(b)(1) is not immediately appealable. Hinson v. City of Greensboro,–––N.C.App. ––––, ––––, 753 S.E.2d 822, 826 (2014) (“We cannot review a trial court's [interlocutory] order denying a motion to dismiss under Rule 12(b)(1).”) (citation omitted).
However, denial of a motion to dismiss pursuant to Rule 12(b)(2) may be immediately appealable. “Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant[.]” N.C. Gen.Stat. § 1–277(b) (2013).
On appeal, Defendant argues that service of process in this case was defective because she did not sign the original summons, or a copy of the original summons, as required by N.C. Gen.Stat. § 1A–1, Rule 4(j5). In effect, Defendant argues that service was improper because she and her attorney did not follow the correct procedure in accepting service. Based upon her alleged mistake, Defendant argues that the trial court erred in ruling it had personal jurisdiction over her.
However, errors in service of process are challenged pursuant to Rule 12(b)(5), not Rule 12(b)(2). Our appellate courts have made clear that denial of a motion to dismiss based upon insufficiency of service of process is not immediately appealable.
Defendant here challenged the sufficiency of the process itself and the sufficiency of the service to give notice. These objections fall within the ambit of Rule 12(b)(4) and Rule 12(b)(5), respectively. Because defendant made no claim that its insured had no “minimum contacts” with this state, (indeed, it appears that it could not make such a claim) the trial court's ruling is not one concerning its jurisdiction over the person and is interlocutory and not immediately appealable.
Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982). Defendant may not create a right of immediate appeal simply by arguing her motion to dismiss was made pursuant to Rule 12(b)(2). “[T]his Court has held that where a ‘defendant's motion, though couched in terms of lack of jurisdiction under Rule 12(b)(2), actually raises a question of sufficiency of service of process, then the order denying such motion is interlocutory and does not fall within the ambit of G.S. 1–277(b).’ “ Crite v. Bussey,–––N.C.App. ––––, ––––, ––– S.E.2d ––––, ––––, (2015) (COA14–743, filed 20 January 2015) (citation omitted).
Defendant's argument that service of process was improper in this action is not properly before us, and we dismiss it. To the extent, if any, that Defendant makes an argument that process itself was insufficient, that is a challenge pursuant to Rule 12(b)(4), and is also not immediately appealable. Moore, 305 N.C. at 581, 291 S.E .2d at 146.
We note that Defendant has shown concern that she may be ordered to provide her current identity and address to Plaintiff. Defendant was allowed to accept service as “Jane Doe,” and there is nothing in the record indicating that Defendant will be required to divulge her identity or address. DSS filed a third-party motion to quash a subpoena demanding Defendant's current identifying information be provided to Plaintiff. There is no indication in the record that this motion was decided by the trial court, though Defendant's acceptance of service through her attorney may have rendered DSS's motion moot. If the issue of Defendant's current personal identifying information again arises at trial, Defendant is, of course, free to address that issue with the trial court at the appropriate time.
Dismissed.
Judges STEPHENS and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from order entered 19 December 2013 by Judge Robert A. Mullinax, Jr. in District Court, Catawba County. Heard in the Court of Appeals 20 October 2014.